The Divisional Court has overturned the disbarment of a Toronto lawyer accused of sexual harassment, last week upholding an appeal panel’s 12-month suspension for professional misconduct instead.
The Law Society of Upper Canada originally disbarred Gary Neinstein in 2004 for professional misconduct following claims of sexual harassment from a client and former employee that had occurred over a decade earlier.
That order was appealed and set aside in 2005 by a discipline appeal panel, which stayed the disbarment, as well as the order of professional misconduct, and ordered a new hearing.
LSUC took the appeal panel’s findings to the Divisional Court, challenging their claim that the hearing panel erred in law, as well as the appeal panel’s decision that the original discipline penalty unreasonable.
However, last week’s Divisional Court ruling only allowed the law society’s appeal in part, as it upheld the original finding of professional misconduct, set aside the appeal panel’s ruling to order a new hearing, but also upheld the decision to stay Neinstein’s disbarment.
At the 2005 appeal hearing, the appeal panel noted that in the event that it was “incorrect regarding the errors in law,” the panel would substitute what it considered to be a more appropriate penalty of a 12-month suspension in place of the disbarment order. In last week’s ruling, the Divisional Court ordered the appeal panel formally substitute the 12-month suspension in place of the disbarment order.
Writing for a 2-1 majority, Justice Katherine Swinton says, “The hearing panel imposed a penalty that was excessive given a number of factors: the lack of prior discipline history, the steps taken by the respondent to rehabilitate himself and to make his office more ‘transparent,’ and the fact that the respondent was unlikely to re-offend.”
She also says that while she would not interfere with the appeal panel’s decision, it would “be unfair to the respondent to substitute the penalty of a 12-month suspension without giving him an opportunity to challenge it on appeal.”
As a result, the court granted Neinstein leave to file a cross-appeal of the suspension within 30 days of the formal order, which he will.
Neinstein’s counsel Brian Greenspan says once the result of penalty is determined, “then the decision will be made as to whether or not [he] will seek leave to appeal to the court of appeal to set aside the divisional court judgment and restore the order of a new hearing.”
Tom Curry, of Lenczner Slaght Royce Smith Griffin LLP, who acted as counsel for LSUC, says, “I think that the court’s decision not to reverse the appeal panel’s decision on the penalty is reasonable. We argued that the hearing panel’s decision ordering disbarment was within the range of penalties available but accept the court’s determination on the issue.”
He added that the law society also supported the court’s position on the opportunity of the member to cross-appeal the 12-month suspension, and that the LSUC will be making submissions to the court on the issue.
Greenspan submitted before the hearing panel that the appropriate penalty would be a three- to six-month suspension. He now says the penalty should “go downwardly” at this point, because of further mitigation as a result of the passage of time and as a result of what the client has been doing in terms of lawyering.
Curry says the decision of the majority in the case “will be helpful in clarifying the standard of review by the appeal panel of hearing panels in future cases,” and that it also provides guidance on the application of the 1991 Supreme Court ruling R. v. W.(D) to administrative law.
“The issues are issues of general application as a matter of law, but they’re not necessarily law society discipline issues, they’re administrative law issues that have a broader application,” says Greenspan.
“Do we believe that its a leave to appeal that has merit? Absolutely, it has broad principles and general application,” he says.